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3d 1152
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Leon Lamont Nelson appeals the 168-month sentence imposed upon him
pursuant to the United States Sentencing Commission, Guidelines Manual
(Nov.1993), following his plea of guilty to the charge of distributing cocaine
base, in violation of 21 U.S.C. 841(a)(1). He contends that the district court
misapplied the Guidelines (1) in determining the quantity of drugs, including
quantities considered part of relevant conduct, for the purpose of calculating a
base offense level; (2) in treating two adjudications against him, entered at the
same time by a juvenile court, as separate offenses for the purpose of
calculating his criminal history; and (3) in adding two criminal history points
for commission of the instant offense while under a deferred sentence.
and 36, he contended only that Nelson was not part of a conspiracy. He further
maintained that the two points added in paragraphs 46 and 47 for prior juvenile
convictions were erroneous for the sole reason that they did not result in adult
sentences of imprisonment exceeding one year and one month.
Mr. Nelson properly preserved his third argument that the district court
improperly applied USSG 4A1.1(d) when it assessed two criminal history
points for committing the instant offense while under a deferred sentence. He
contends that the deferred sentence referred to in the PSR expired on March 21,
1993, while the counts to which he pled guilty in this case occurred in
September 1993. At sentencing, the district court quoted the following
commentary to section 4A1.1(d): "Two points are added if the defendant
committed any part of the instant offense (i.e., any relevant conduct ) while
under any criminal justice sentence ...." The court then had the following
colloquy with Nelson's counsel:
7 Court: "Relevant conduct would be any conduct that is part and parcel of that
The
offense." And I don't think there's any dispute that [Nelson] was involved in
conduct--in distribution during the time of the deferred [sentence], is there?
10
In his brief on appeal, Nelson does not contest the validity of the district court's
interpretation of the Guidelines, as described above. He essentially just
disagrees with the Guidelines, Br. for Appellant at 6, as he did at sentencing:
"The Court: But your objection is that you just disagree with that?' Mr. Kissner:
Yes sir.' " R. Vol. XI at 4. Obviously, the district court did not err in its
application of the Guidelines when, under the admitted facts set forth in the
PSR, Mr. Nelson's relevant conduct for the instant offense was occurring on
and before March 21, 1993, while Nelson was still under a deferred sentence.
11
For the reasons stated above, the sentence imposed by the district court is
AFFIRMED.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470
Although only 770 grams of cocaine base were attributable to Nelson for
Guideline purposes, investigating agents conservatively estimated that he had
distributed 2704 grams over a two-year period. See PSR, 1/231